from the ooops dept

This is quite an incredible story that's unfolding about a new opportunity for a Constitutional challenge to the FISA Amendments Act, which has enabled broad NSA surveillance. If you haven't been following the details (and even if you haven't been following all of this closely), the specifics may be a bit confusing, so we'll try to go piece by piece through the history here to explain the events leading up to a new Constitutional challenge being placed on the law, which the Supreme Court had previously effectively wiped out -- in large part due to false information presented by the Solicitor General, who now appears to be not at all happy the intelligence community led him to lie to the Supreme Court. And it may have all unravelled because of Dianne Feinstein's gloating and bragging about how important the FISA Amendments Act is.

First up: the FISA Amendments Act (FAA) was passed in 2008, after Congress claimed that the intelligence community was hamstrung in important areas of surveillance. Much of the debate over the law was focused on the fact that it gave telcos retroactive immunity for anything illegal they might have done regarding President Bush's warrantless wiretapping program, which was only revealed by the NY Times a few years earlier. But, even more important than that was that the FAA more or less authorized continued warrantless wiretapping by the intelligence community. In 2011, the FAA was up for renewal. Some in the Senate sought to use the distraction (that year) over the "debt ceiling" to sneak through an early renewal with no debate, and Senator Ron Wyden put a hold on it, demanding more answers about how many Americans were being spied on. He eventually lifted the hold in exchange for a one-year extension and a promised debate over the FAA.

Fast forward to the end of last year, with the FAA set to expire yet again, and Senate Intelligence Committee boss Dianne Feinstein, who had originally made that "deal" with Wyden, tried very hard to avoid having any debate. Eventually, at the very end of December, she allowed a brief debate, in which she showed up up to insist that the FAA had to be renewed or we'd all be at risk. As we noted at the time, her reasoning was somewhat laughable, where she held up a pretend piece of paper with a supposed "classified" reason for why the FAA was so important. Remember that speech, because it's going to become quite important a little later on in this story.

Parallel to all of this, there was a legal fight making its way through the courts, brought by the ACLU to challenge the Constitutionality of the FAA. The big question was whether or not the courts could be convinced that the ACLU had "standing" to sue, since it couldn't prove that it had been spied on directly. Eventually, in a narrow 5-4 decision, the Supreme Court said that the ACLU had no standing. Of course, the key thing that had concerned the Justices the most was the simple question: if the program is secret, then could anyone ever challenge the Constitutionality of the program?

Solicitor General Donald Verrilli, who argued the case on behalf of the government, told the Supreme Court that of course people could have standing to challenge the law, and that the government would be required to inform defendants in cases where such information was used that it was collected under the FAA. This point is what pushed the Supreme Court over the edge to rule against the ACLU. As they noted in the majority decision:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Okay, now the law has been in place since 2008. If what Verrilli said was true, then, um, shouldn't there have been some cases between now and then where the FAA-enabled wiretapping was used? And if that's true, then it should have been disclosed in the various cases. Except, there is no case on record where it had been disclosed.

"I've asked the staff to compile arrests that have been made in the last four years in America on terrorist plots that have been stopped. And there are 100 arrests that have been made since 2009 and 2012. There have been 16 individuals arrest just this year alone. Let me quickly just review what these plots were. And some of them come right from this program. The counterterrorism come and the information came right from this program. And again, if Members want to see that they can go and look in a classified manner.

[proceeds to list out eight "examples" of terrorism arrests -- two with names, six are just general descriptions of plots]

... and it goes on and on and on. So this has worked. And you know, as the years go on, the intelligence becomes the way to prevent these attacks. Now that the FBI has geared up a national security unit, they've employed 10,000 people and information gained through programs like this, through other sources as well, is able to be used to prevent plots from happening. So in four years 100 arrests to prevent something from happening in the United States, some of which comes from this program. So I think it's a vital program.

The lawyers for the defendants in the two named cases suddenly recognized an issue. They were named in this list, but at no point had they been told that evidence was gathered under this program. So they asked. And... the government refused to tell them the details. The NY Times took notice of this, pointing out that either Feinstein lied in her Senate statement or Verrilli lied to the Supreme Court:

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

To his credit, it appears that once this all became clear, Verrilli had a crisis of conscience, suggesting that he did not knowingly lie to the Supreme Court, but honestly believed that the DOJ would reveal its use of these programs in cases. From that new NY Times piece by Charlie Savage, it's reported that Verrilli was pretty angry about being misled and demanded some answers:

As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials.

The national security lawyers explained that it was a misunderstanding, the officials said. Because the rules on wiretapping warrants in foreign intelligence cases are different from the rules in ordinary criminal investigations, they said, the division has long used a narrow understanding of what “derived from” means in terms of when it must disclose specifics to defendants.

Either way, Verrilli followed through on this, and apparently kicked off a major "internal debate" over whether or not there was "any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, thereby preventing them from knowing that they had an opportunity to argue that it derived from an unconstitutional search." According to the article, Verrilli "argued that withholding disclosure from defendants could not be justified legally." Eventually, even the NSA and FBI's lawyers and James Clapper's office agreed. The decision was made to start revealing this information going forward.

However, they also agreed to reveal to at least one defendant that the FAA was used to collect evidence against them, and that this had not been revealed. Of course, this means they get to cherry pick the "right" case.

The ACLU, however, is not waiting around. Almost immediately, it filed a case about this, arguing that the government had illegally hidden this information in response to a FOIA request. It seems like that may be the most obvious procedural way of re-raising this question, as I have no idea if there's some way for the ACLU to directly petition the Supreme Court to reopen the case, noting that the key piece of information the Justices relied on to make their ruling was false (though, apparently, from a Solicitor General who had been misled by prosecutors).

Now, to wrap this all up, we bring it back around to Feinstein's speech in the Senate. Remember, the whole point of her speech was to directly argue for the reapproval of the FAA. And while she equivocated a few times in describing what programs were responsible for the arrests, she clearly made references to "this program" working. However, when the lawyers for one of the defendants named by Feinstein asked the Senate Intelligence Committee for some clarification, Morgan Frankel, a Senate Intelligence Committee lawyer, responded by arguing that Feinstein wasn't actually referring to the FAA program. Seriously.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud's case, in which terrorist plots had been stopped. Rather, the nine cases the Chairman sumamrized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by the staff from FBI press releases and other public sources.

[....]
To summarize, nothing in Senator Feinstein's remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud's case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack." Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no "assessments, reports, and other information" in the Committee's possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud's case.

Did you get that? So, what they're now saying is that Senator Feinstein went to the floor of the Senate to argue strongly in favor of renewing the FAA, and she named a bunch of cases, clearly stating that this program was necessary because of those cases -- but she didn't mean to imply that it was ever actually used in any of those cases. And, in the meantime, we now find out that even in cases where it has been used, no one's been told about it, despite the law requiring defendants to be told -- and the Solicitor General telling the Supreme Court they would be told.

So, it appears that both Verrilli and the Supreme Court got duped by the intelligence community, while Feinstein clearly misled the Senate and the American public by pretending that the FAA had been used to stop terrorism, but when called on it, now pretends she meant no such thing. Thankfully, however, her attempt at misleading the public by bragging about these arrests may have now (finally) kicked off the legal rationale for a case to prove that the FAA is, in fact, unconstitutional.

from the no-expectation-of-privacy-and-no-right-to-sue dept

Privacy activists EPIC have taken a novel approach to challenging the bulk records collections. Rather than work its way up through the circuit courts, it has appealed to the Supreme Court directly, asking it to find that the NSA has exceeded its authority by collecting data on American citizens.

Arguing that no lower court would have the authority to rule upon the legality of that FISC order, EPIC took its plea directly to the Supreme Court. Its filing in July asked the Court to rule that the FIS Court has wrongly claimed authority for its global data-gathering under a 2001 federal law. That law gave the FIS tribunal the power to issue electronic surveillance orders to produce "tangible things" during an investigation of potential threats to national security.

EPIC asked the Supreme Court either to vacate the FIS Court order to Verizon or to bar its further enforcement, contending that the compelled "production of millions of domestic telephone records . . . cannot plausibly be relevant to an authorized investigation" of potential terrorist activities.

The government has filed a brief arguing that EPIC's complaint should be routed through lower courts first. The government's rebuttal leans heavily on procedural arguments, first pointing out that only the federal government itself or the entity receiving the FISC orders can challenge these orders. In addition, the government points out that the law creating the FISA Court does not provide protection to third parties like EPIC.

It also argues (as it has successfully in the past) that EPIC can't prove it has suffered harm from the collection of its phone data.

Further, the government contended, EPIC has not offered proof that it could satisfy the requirements of the Constitution's Article III as a party with a specific claim to an injury as a result of government action.

Notably, the government isn't arguing that EPIC can't prove its metadata was obtained. Snowden's first leak eliminated that issue. Instead, it's arguing that no citizen or entity other that the entity the records were obtained from has standing to sue or otherwise challenge FISA court orders.

But the government has gone even further, playing both sides of the issue in order to both continue to acquire the bulk records and prevent anyone from challenging the collection. The government wants to enjoy all of the benefits of the bulk collection without suffering from any of the drawbacks. So far, this has paid off. Its arguments are inconsistent (to put it mildly), and a recent court case involving a convicted terrorist may test the limits of its arguments.

The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, "regardless of the collection's expanse." Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court.

The court (well, the FISA court) has agreed with this as well, at least part of it. It has stated that rights do not suddenly appear because a collection that is deemed legal for one person (like phone metadata) is used to collect data on several people.

The government's opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that "where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo."

But that same argument should work against the government's claim that no single person or entity (other than the company handing over the data) has standing, especially in this case. Just as certainly as rights do not "spring into existence," standing doesn't suddenly disappear because the collection is untargeted. If the government can use the argument that a collection of millions of records is no more illegal than the collection of a single person's records, then it would seem reasonable that every person who "provides" these collectible records to third parties would have standing to challenge these disclosures.

What the government is doing in Moalin's case is highly hypocritical.

The government has always argued that there's no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the "third-party doctrine." But [EFF staff attorney Hanni] Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that "these records aren't even Moalin's to begin with so he can't complain."

Fakhoury disagrees "with the idea that the user has no standing to challenge the use of evidence that says something about him" and thinks the government undermines its own argument about who has standing to contest the evidence. "[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren't his."

The government needs this win very badly as it's using Moalin's case to prove the necessity of the 215 bulk records collections. But it wants to do so by arguing that someone who can assert they've suffered direct harm from this collection (Moalin is in jail, after all) doesn't have standing.

The government wants an unchallenged bulk collection and is throwing down every argument it can in order to head off possible challenges, either to the collection itself or to the evidence it provides. The end result is a very thorough abuse of the Third Party Doctrine that, so far, has allowed intelligence agencies to reap all the benefits and suffer none of the consequences. If the government wants to argue that collecting from everyone is no different than collecting one person's records, then it shouldn't be able to turn around and claim no one has standing to challenge the collected data -- either as evidence or the constitutionality of the collection.

from the pick-one dept

While there's been plenty of attention over the last month or so concerning the revelations from Ed Snowden about NSA surveillance, there have been a series of important ongoing lawsuits that tried to challenge the various aspects of the surveillance efforts. Unfortunately, most of these have ended badly, leading some to wonder if there even is any way at all to legally challenge these programs. At the end of 2011, for example, in a case testing the legality of the telcos helping the government with warrantless surveillance, Hepting v. AT&T, one of the key reasons why the court rejected the challenge was because it basically said, "well, you can always sue the government, but the government has the right to absolve companies of such wrongdoing." Except that, as the Supreme Court ruled earlier this year, because the government keeps the program a complete secret, no one has standing to sue. That is, unless you can prove that you were spied on via this specific program, you can't sue because there's been no harm.

The Supreme Court Justices were clearly troubled by the idea that the government could implement a secret surveillance program that could never be challenged in court, and homed in on that key point in questioning the Solicitor General of the US (and former top RIAA litigator), Donald Verrilli. As the NY Times notes, Verrilli insisted that it simply was not true that no one would ever have standing, because if the government ever used information from such surveillance programs in a court case against someone, the government would have to reveal that the info came via that program.

“Is there anybody who has standing?” Justice Sonia Sotomayor asked.

Yes, said Mr. Verrilli, giving what he called a “clear example." If the government wants to use information gathered under the surveillance program in a criminal prosecution, he said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Got that? Of course people would have standing, because the government has to tell them where the information came from. So those people could always challenge the program. When the eventual Supreme Court ruling came out, the majority decision relied very heavily on this particular claim:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of
respondent-attorney’s foreign clients using §1881a-authorized
surveillance, the Government would be required to make a
disclosure.... In such a situation, unlike in the present case,
it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Ok. Now, here's the important part. In defending the FISA Amendments Act (FAA), which is what enabled these kinds of warrantless wiretaps, politicians have been pointing to all of those "examples" where this program was supposedly instrumental in "stopping terrorists." And this includes a few cases that involved federal prosecutions. Senator Dianne Feinstein, the staunchest defender of these programs, has called out two specific prosecutions as "specific cases where FISA Amendments Act authorities were used," saying that "these cases show the program has worked."

While it's arguable whether or not these cases actually showed whether or not the program worked, they do give us two cases where, according to the US Solicitor General and the Supreme Court, the feds were required to reveal to the defendants the source of the information.
And take a wild guess whether or not the government actually informed the defendant how it obtained the info? You're psychic!

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In fact, the magistrate judge in the Florida case has told the government it needs to disclose whether or not the surveillance was based on the FAA, but the government, so far, is refusing to say anything, and is asking the court to reconsider.

As far as I can tell, there are a few possibilities here, none of them good:

Solicitor General Donald Verrilli lied to the Supreme Court about whether or not the federal government would need to reveal the source of surveillance info obtained under the FAA.

Senator Dianne Feinstein lied to Congress about the FAA supposedly being instrumental in those cases.

The US Attorneys are now withholding information they are, by law, required to reveal.

It's possible that the reality is a combination of all three. But I can't see how you can explain the present situation without at least one of the three statements above being true.

The ACLU has called this "a shell game" and it's that and more. No matter where you point for the legal authority to challenge these programs, the government insists you have to look elsewhere. Can't sue the companies, but can sue the government. Can't sue the government unless you can prove standing. Can't prove standing unless you're in a case which involves this surveillance, at which point we have to tell you. Of course, in cases where it's been revealed that this kind of surveillance is used, well, now the government insists it doesn't have to admit that. Basically, the feds are going to keep trying to avoid ever having to face an actual legal challenge on this, which suggests they know the reality: the program is illegal and unconstitutional. If they were sure that it was a legitimate, constitutional program, why not just stand up in court and say that?

from the good-and-bad dept

This isn't a huge surprise, but in Righthaven's big appeal concerning the key issue over which it lost all of its cases -- whether or not it had standing -- has resulted in yet another huge loss for Righthaven. The court basically agreed with every single other court that has ruled on this matter, noting that when Stephens Media "assigned" the copyrights to Righthaven, it really did no such thing. Instead, it merely assigned the bare right to sue, which you can't do under copyright law. Considering how some of our critics insisted that Righthaven would win this point on appeal, I'm curious to see how they respond. The court basically agreed with all of the points that a bunch of district court judges had all pointed out: the Strategic Alliance Agreement (SAA) left all the power in the hands of Stephens, including ultimate control over every single one of the official rights associated with copyright law under section 106. Thus, it did not, in fact, assign the copyright, and Righthaven had no standing to sue.

The SAA provided that Stephens Media automatically
received an exclusive license in any copyrighted work it
assigned to Righthaven, so that Stephens Media retained “the
unfettered and exclusive ability” to exploit the copyrights.
Righthaven, on the other hand, had “no right or license” to
exploit the work or participate in any royalties associated
with the exploitation of the work. The contracts left
Righthaven without any ability to reproduce the works,
distribute them, or exploit any other exclusive right under the
Copyright Act. See 17 U.S.C. § 106. Without any of those
rights, Righthaven was left only with the bare right to sue,
which is insufficient for standing under the Copyright Act
and Silvers.

The appeals court walks through each one of Righthaven's attempts to get around this basic fact and shows how none are even remotely persuasive, because all ultimately show the same basic argument, which is that the copyright was assigned to Righthaven who then handed back an exclusive license to Stephens. The fact that Righthaven retained none of the key copyright rights shows that this was all a sham. Or, as the court notes, it "emphasizes form over substance." The court also rejects Righthaven's claim that the agreement was later fixed, by pointing out that what matters is the standing at the time of the lawsuit.

The ruling isn't all great, however. The court did overturn the part of the Hoehn ruling in which the court had said that his use of the Las Vegas Review-Journal article (even the entire article) was fair use. Basically, this is a bit of a procedural thing. Effectively, the court is saying that once the district court ruled that Righthaven had no standing, there are no other issues to rule on, so the fair use ruling is inappropriate. This was the part of the case that the RIAA, in particular, wanted thrown out, because it doesn't want any ruling on the books saying that using an entire work might be fair use. And, on this front, the RIAA got its wish. While the court doesn't say that the use was not fair use -- and in fact notes that "we understand why the district court reached the fair use
issue" -- it also notes that, legally, the court really has no right to delve into that issue after it's decided that Righthaven has no standing.

because we agree that Righthaven did not
have standing, it is not appropriate for us to go further or for
the district court’s alternative ruling to stand. We therefore
vacate the portion of the district court’s order that analyzed
the merits of the fair use defense and granted the motion for
summary judgment.

This is not a huge surprise, but it is unfortunate, because the original Hoehn ruling on fair use was a great example of how using an entire work can be fair use. There are other such cases, but losing one of those rulings is unfortunate.

Either way, this should confirm that Righthaven is officially dead and buried. I can't see them appealing to the Supreme Court, though stranger things have happened (just like Prenda took over the mantle of absolutely crazy copyright trolling from Righthaven a long time ago).

from the but-of-course dept

This probably won't come as a surprise to anyone, but the Supreme Court has completely shot down the ACLU (and some activists and journalists') attempt to invalidate the part of the FISA Amendments Act that "legalized" warrantless wiretapping. As we guessed at the time of the oral hearings, it seemed like it was going to be difficult to convince a majority of the court that the plaintiffs had any standing to complain, since they couldn't show that they had been directly impacted. And, indeed the court ruled 5 to 4 that there was no standing here. So, basically, there is simply no way to challenge the constitutionality of warrantless wiretaps.

Doesn't that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there's no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you've been spied upon the government can just claim sovereign immunity, and that's it. Case closed.

The full ruling is pretty depressing. The court basically says any harm is "speculative," and thus there can't be any standing at all.

We decline to abandon our usual reluctance to endorse
standing theories that rest on speculation about the decisions of independent actors.

That's from the majority ruling, written by Justice Alito, and signed by Justices Roberts, Thomas, Scalia and Kennedy. Dissenting were Justices Breyer, Ginsburg, Sotomayor and Kagan. The majority also rejected the idea that merely having to take precautions not to be spied upon without warrants represents a real harm that gives standing:

If the law were otherwise, an enterprising plaintiff
would be able to secure a lower standard for Article III
standing simply by making an expenditure based on a
nonparanoid fear.

Perhaps a legitimate concern, but it still seems somewhat ridiculous that there is no actual way to test the constitutionality of a law that clearly has 4th Amendment consequences.

The dissent pointed out that it's crazy to suggest that the fact that this will be used on the plaintiffs was "speculative," and clearly worried about the implications of such a ruling and what it means for the government's ability to pass these kinds of laws without real judicial review.

The upshot is that (1) similarity of content, (2) strong
motives, (3) prior behavior, and (4) capacity all point to a
very strong likelihood that the Government will intercept
at least some of the plaintiffs’ communications, including
some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept.
At the same time, nothing suggests the presence of some
special factor here that might support a contrary conclusion. The Government does not deny that it has both the
motive and the capacity to listen to communications of the
kind described by plaintiffs. Nor does it describe any
system for avoiding the interception of an electronic communication that happens to include a party who is an
American lawyer, journalist, or human rights worker.
One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how
strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite
pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that
seeks to defeat a strong natural inference must bear the
burden of showing that some such special circumstance
exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability
that the Government will intercept at least some electronic communication to which at least some of the plaintiffs
are parties. The majority is wrong when it describes the
harm threatened plaintiffs as “speculative.”

They go on to point to a series of other cases where standing was granted based on "probable" injury. It also notes a bunch of scenarios that seem ridiculous, but which are logically implied by this ruling. And, indeed, the standard the Supreme Court ruling makes here is a very high bar that is going to deny standing in many cases, and often allow the government to act with impunity in cases where oversight is needed. This is very unfortunate. And, of course, it's unlikely that Congress will do its job and step in to fix this.

from the not-looking-good dept

These days, with the likes of Prenda Law and Charles Carreon, it feels like we've all forgotten last year's favorite legal punching bag: Righthaven. While its comical failures had resulted in at least one of its major appeals going away, the company somehow convinced another lawyer to represent it, and he actually showed up in the 9th Circuit appeals court yesterday to try to revive Righthaven's chances in two of its key cases: the DiBiase case and the Hoehn case.

Syverson tried to argue that the deal with Stevens Media, the parent company of the Las Vegas Review-Journal, involved an actual copyright transfer. "Righthaven and Stevens Media were well aware of the Silvers case and attempted to comply," said Syverson early on in his argument.

"It looks like form over substance," said one of the judges on the three-judge panel. "It seems like an attempt that's too cute by half to get around Silvers."

Another judge noted that Stevens could take back any of the rights at any time, meaning any "transfer" of copyright wasn't very meaningful. Righthaven couldn't really have licensed the copyrights or published the articles it had the rights to, since Stevens Media could have reclaimed those rights at any time.

If you don't recall, the key issue was that Righthaven never really had any control over the copyright in the cases. They involved content from the Las Vegas Review-Journal, but the agreement between Righthaven and Stevens Media (the owner of the LVRJ) made it clear that the LVRJ had full say in things and could take back the copyright at any time. In effect, the only thing really transferred to Righthaven was the "bare right to sue" and you can't do that, because such a "right" is not a separate right of copyright. You can only transfer one of the actual listed copyright rights (e.g., the right to reproduce, distribute or perform) and with that comes the ability to sue. The Silvers case referred to above is Silvers v. Sony Pictures which makes that point clear.

That said, as Joe Mullin reports in the link above, the appeals court justices seemed somewhat less bought into the idea, raised in the Hoehn case, that the use of the LVRJ material was fair use. That's unfortunate. It was a good ruling that found that even when you repost a full article it can be fair use. The argument was mainly that when Wayne Hoehn posted it, it was not for the same purpose or in any way competitive with Righthaven (who merely wanted it to sue). But the court wasn't as receptive to that argument:

First of all, Hoehn's use wasn't "transformative," noted one judge on the panel. "How is the nature and character of the article changed at all, by posting it to a website?" he asked. "Have you ever seen a newspaper that didn't have space for letters to the editor, or a space for comments?"

Just the fact that he meant to inspire debate doesn't justify copying the full work, said another judge. "What if I copied Justice Sotomayor's book into a blog post and invited people to comment on it?" he asked.

Hopefully the panel reconsiders before issuing its ruling. The way Hoehn used it was not the same way that Righthaven or the LVRJ were using it -- and it's that aspect that was transformative. Still, it won't surprise me if that argument fails, but it will be unfortunate. Either way, if Righthaven actually "wins" on that point, it won't much matter for the company, considering its likely to lose on whether or not it even had standing to sue in the first place. However, for those of us concerned about fair use, and how widely it can be applied, this second issue may be a lot more important. Having a strong fair use ruling on the books concerning the reposting of full content (in a particular context) would be a good thing to have, though it sounds unlikely.

from the good-rulings dept

A few years ago we wrote about how UCLA professors were barred from continuing an existing program in which they had streamed properly licensed DVDs to students. The lawsuit came from the Association for Information Media and Equipment (AIME). We noted that one of the key aspects of "fair use" is supposed to be that it allows for educational use, and it seemed ridiculous that any such streaming wasn't fair use. After thinking it over, UCLA decided to stand up for itself and put the videos back online. AIME sat on this for eight or nine months and finally sued, arguing that its contract with the University meant that UCLA had given up its fair use rights, and that even if it was fair use, it was a breach of contract. A year ago, the judge dismissed the case, mostly focusing on the question of whether or not AIME even had standing to sue and whether or not, as a state university, UCLA could hide behind a sovereign immunity claim.

AIME filed a new (amended) complaint against UCLA... which basically restated everything it had lost over, and then added a few claims. The court apparently was not impressed. It just dismissed the case all over againwith prejudice, meaning that AIME can't just refile. On top of that it actually dealt a bit more with the copyright questions. First, it was not at all impressed by AIME's decision to just replead the same exact thing a second time:

In its order dismissing the FAC, the Court dismissed with prejudice all claims against the Regents and claims seeking damages against individual defendants in their official capacity on the grounds that these individual defendants are immune from suit under the doctrine of sovereign immunity... Plaintiffs have verbatim re-pleaded those claimsfrom the FAC for purposes of appeal.... As these claims have already been dismissed with prejudice, the Court does not analyze them further.

Later the court goes through a relatively quick fair use analysis, focused mainly on the question of whether it would have been obvious to the average person that this use was not fair use. The court finds plenty of ambiguity in the fair use analysis, and thus notes that it is not obviously a case of infringement, so AIME's claim that this was clearly infringement doesn't hold up.

Then there are a few other interesting points, including a discussion of whether or not streaming is a form of "distribution." Remember that we were just discussing the whole distibution right under copyright law, even pointing out that if you read what copyright law actually says, it only refers to "material objects" in which a copyright-covered item is "fixed" -- not to transient digital files. This appears to be one case where the court actually noticed that fact, and points out that with a stream, the digital product was not actually distributed:

Under the Copyright Act, distributed items must be “material objects” in which a copy is “fixed.” 17 U.S.C. § 101. Plaintiffs’ new allegations that “the Video Furnace system administrator retains an original copy of the AVP DVD while distributing copies to end users, which copies remain on the end user’s computer as long as the Video Furnace InStream player remains open” does not change this outcome. For a copy to be fixed, it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101. The “copy” on the end users computer, as alleged, is not fixed.

They also have an interesting response to the anti-circumvention DMCA claim in the amended lawsuit. One of the main problems many people have with the anti-circumvention clause is that it appears to apply absent any actual infringing activity. That is, under the DMCA it appears that merely circumventing DRM, even if for legitimate, non-infringing uses, is considered against the law. But here, the court rules that since the copy is legal, there is no problem with circumventing the DRM. That's very interesting:

This Court finds that Plaintiffs have failed to cure the defects with their DMCA claim. First, the allegations in the SAC do not support a claim that Defendants violated 17 U.S.C. § 1201(a)(1)(A) by using the HVS Video Furnace software to “circumvent . . . a technological measure that effectively controls access to” the DVDs because UCLA had lawful access to the DVDs and Plaintiffs essentially allege improper usage of the DVDs.

Either way, the latest ruling is a complete victory for UCLA and yet another loss for AIME. While the question of fair use is still mostly brushed aside (unfortunately), the overall ruling is a good thing.

from the make-the-case dept

Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use. It was a near complete smackdown for the Authors Guild.

The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.

Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.

Google Books is a revolutionary search technology for books—a modern
and marked improvement over the traditional card catalog. Google has scanned
and indexed more than 20 million books by agreement with major research
libraries. The Google Books tool allows any user to enter a search query, obtain a
list of books containing the user’s search terms, and view limited “snippets” of
surrounding words showing how the terms are used. Google Books does not allow
users to read a book online, or even a single page of a book, without express
permission from the rightsholder. But its search capabilities help users find books
to buy or borrow, connecting them with the books they need, and thus bringing to
light a wealth of information previously hidden, undiscoverable, in books sitting on
library shelves. Google Books thus offers enormous benefits to authors and
readers and to the progress and diffusion of human knowledge.

It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:

Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted
evidence that a significant portion of the proposed class in fact approves, and
benefits from, Google Books’ uses—the district court certified a plaintiff class
under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing
in the United States who hold a United States copyright interest in one or more
Books reproduced by Google as part of its Library Project.” SPA2. That decision
was error, for several reasons. First, Plaintiffs cannot adequately represent, as
required by Rule 23(a), the large number of class members who would be harmed
if Plaintiffs prevail—that is, the many class members who benefit economically
and in other ways from the Google Books project and do not want to see it
curtailed.

Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.

from the that-would-appear-to-be-a-problem dept

One of the more ridiculous things about the government's ongoing campaign of secret surveillance on Americans is how hard it's fought back against anyone who has sought to have the policy tested in the courts. If the feds were confident that what they were doing was legal, they wouldn't be so aggressive in blocking each and every attempt. When the ACLU and others filed suit over the warrantless wiretapping under the FISA Amendments Bill (the Clapper v. Amnesty International case) the lower court rulings were especially troubling, because it was ruled that there was no standing to sue, because there was no direct proof of such spying. So that leaves the public in quite a bind. They can't complain about the program unless they can prove they've been spied upon, but they can't do that unless they know more about the program, which is secret. Someone page Joseph Heller.

The part of the case now at the Supreme Court is only over whether or not there is significant standing for Amnesty International and the ACLU to move the case forward. The government insists, quite vehemently, that as long as no one knows it's spying on them, they can't sue. The SCOTUS blog has a nice recap, saying that the Justices were "sensitive" to the lawyers who want to sue, but as we've warned before, what Justices say at oral hearings is not always a good barometer for how they'll eventually rule. Still, we might as well go through the transcript for some key points. The report kicked off with Solicitor General (and former entertainment industry litigator) Donald Verrilli being quizzed on the fact that, under his interpretation, no one could ever bring a lawsuit until after they were charged with a crime and knew about the details. That's neither fair, nor reasonable. Verrilli tries to cook up some other scenarios, but they all appear quite unlikely.

And, thankfully, Justice Ginsburg calls him on this point:

General Verrilli, can you be specific on who that person would be? Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense. It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.

So it's hard for me to envision. I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.

In other words: "don't we have a problem when any effective oversight is written out of the law?"

Later, Ginsburg also wonders if the government will just claim state secrets to get out of having to provide info anyway. In the end, the debate comes down to if a lawyer just thinking that the government is spying on his phone calls, such that he's already modifying his behavior, is a form of "harm," and whether or not we trust the special FISA court (set up to monitor this stuff) to do a good job in weeding out abuses. Concerning "thinking" that the government is spying on a call, Verrilli tried to claim that there's no real harm there because a lawyer has an ethical obligation to take greater precautions. Seriously:

JUSTICE
KAGAN: Well, is it really such speculation, General? I mean, just imagine that -- yourself in this lawyer's position, and the lawyer says, I'm representing a person associated with a terrorist organization, I'm representing KLM in the case of one of these lawyers, and I'm going to be talking to that person's family members and associates and trying to find out everything that I can.

Now, as a lawyer, would you take precautions, or would you pick up the phone and start writing e-mails to all those people?

GENERAL VERRILLI: If I took precautions, it would be because of a belief that I had to comply with an ethics rule, and the ethics rule would be the cause of me taking those precautions. It doesn't change the standard.

JUSTICE KAGAN: I don't even think it has to do with an ethics rule. If you're a good lawyer -forget the ethics rule and how the ethics rules apply. Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?

On the side of the lawyers seeking standing, their lawyer, Jameel Jaffer, tried to build on the hypothetical that the Justices raised, in which there's a "substantial risk" of having communications intercepted, leading them to change their behavior. Here Chief Justice Roberts kept pushing back that the standard is "certainly impending" rather than "substantial risk."

CHIEF
JUSTICE ROBERTS: You have two arguments; one is likelihood of future injury and the other is present obligations or cause. I want to focus on the former. Our standard is certainly impending, and you articulated it by saying, substantial risk. There is obviously a vast difference between those two.

MR. JAFFER: Well, I don't think, Your Honor, that the Court has settled on certainly impending. The cases that the -- the Government cites are cases like -- I think that the one that the Government cites, relies on most heavily is Summers. But in Summers, the distinction between likelihood and certainly impending was not one that the Court relied on in -- in that decision. The Court said that plaintiffs couldn't meet even the lower standard. So I think that the discussion of certainly impending -

JUSTICE
KENNEDY: But both in Summers and Monsanto the Government tells us: We knew that the governmental act was occurring, and then once we knew that, the question was substantial risk.

MR. JAFFER: Justice Kennedy, the -- the -the cases that we rely on, Monsanto, Laidlaw, Meese v. Keene, these are cases in which the Court didn't look to the certainly impending standard at all. The question that the Court asked in those cases was: Is there a substantial risk? Is there a substantial risk that effectively compels the plaintiffs to act in the way they are -- they are acting?

Meanwhile, Justice Scalia seemed to think that the FISA Court could really be trusted to automatically ferret out 4th Amendment violations without, say, lawyers being spied upon being able to raise the issue themselves. Scalia, it would appear, is tremendously trusting in the powers of the FISA Court to actually stop excessive surveillance. While Jaffer points out that the current fight to renew the FISA Amendments Act suggests otherwise, since it removed the basic tests that the FISA Court had to look at the specifics (about the particular person or location being monitored) and gives the government much more leeway to spy broadly:

JUSTICE SCALIA: Does that assessment take into account the fact that a court is going to pass upon the Government's ability to intercept these communications?

MR. JAFFER: It does, Justice Scalia. I mean you -- you are right that there is a court that in some sense stands between plaintiffs and the future injury that they -- that they fear.

JUSTICE SCALIA: With the obligation to apply the Fourth Amendment.

MR. JAFFER: I don't think it's that simple. The -- the -- the court, the FISA court, is tasked with assessing the reasonableness of targeting and minimization procedures. But the statute itself forecloses the court from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires. So for example, the statute itself in section (g)(4) says that the Government is not required to identify the facilities to be monitored. And the statute itself in defining targeting procedures defines them to be procedures intended to ensure that the targets are outside the United States.

JUSTICE SCALIA: But if as you say those procedures violate the Fourth Amendment, it doesn't matter what the statute says.

MR. JAFFER: Well, the Court would have to -

JUSTICE
SCALIA: If those statutory provisions would produce a violation of the Fourth Amendment, they are null and void, right?

MR. JAFFER: Well, I think that's right.

The -- the court -

JUSTICE
SCALIA: Okay. So the FISA Court would presumably know that.

MR. JAFFER: Well, I think if that had happened over the last 4 years, the Government wouldn't be seeking reauthorization of the statute now.

Later, he pushes back again, noting that the FISA Court doesn't get enough details to make the determination:

JUSTICE SCALIA: I don't see how the rest of your challenge or your challenge to the remainder of this statute can be characterized as a facial challenge, because it necessarily assumes that the FISA court will mistakenly say that there has been no Fourth Amendment violation, doesn't it?

MR. JAFFER: I don't think that's so, Justice Scalia. Our concern is not -- not that -- that the FISA court will make mistakes, although it well might. The concern -- the main concern is that the reasonableness inquiry that the FISA court engages in is a narrowly cabined one. They court can't say this is unreasonable because you haven't identified the facilities. They can't say this is unreasonable because you haven't identified a specific target.

On the whole, it does seem like it may be difficult to convince a majority of the Justices that there is standing here. This is unfortunate, because clearly some of the Justices are worried about the implications of the federal government being able to pass a law for secret spying that no one can ever challenge since they'll never know about it. But, if they can't prove that the spying actually took place, then it's tough for them to be able to show the actual harm. Hopefully the Court recognizes that the uncertainty surrounding the likely monitoring of communications is legitimate harm... but it seems like a longshot.

from the good-for-them dept

Earlier this year, we noted that Twitter was standing up for the rights of one of its users, Malcolm Harris, who had been charged with disorderly conduct during an Occupy Wall St. protest event. The government had sought info on Harris' Twitter account using a 2703(d) order. Twitter told Harris about the request, and Harris sought to quash the order. The courts said that Harris had no standing, because he had no interest in his own tweets, based on a complete misreading of Twitter's terms of service (which actually say the user retains ownership of the content).

Unfortunately, the NY court didn't buy it, and told Twitter to hand over the info. It ignored many of the bigger questions, and basically just says that since Harris tweeted publicly, there is no issue here. But that ignores a few things: (1) not all of the info sought was just what he tweeted and (2) not all of the tweets are available publicly.

Harris has appealed, and it's good to see that Twitter is also appealing, arguing that the court made some significant mistakes. The company basically reiterates its earlier argument that Harris has standing to quash the order, and also some reasonable privacy protection in some of the content sought.

Twitter respectfully submits that its users have standing on three separate
and independent grounds to move to quash subpoenas directed to Twitter for their
records. First, Twitter’s users have standing under New York law because
Twitter’s Terms of Service have long established that users have a proprietary
interest in their records. Twitter users own their Tweets and should have the right
to fight invalid government requests. Second, Twitter’s users have standing under
§ 2704(b) of the federal SCA, which provides that a user who receives notice of a
subpoena for their account records “may file a motion to quash such subpoena . . .
in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users
have standing based on a long line of precedent establishing that individuals whose
constitutional rights are implicated by a government subpoena to a third party can
challenge the request. Accordingly, the Court should find that Twitter’s users have
standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S.
Constitution and art. I, § 12 of the New York Constitution because the government
admits that it cannot publicly access them, thus establishing that Defendant
maintains a reasonable expectation of privacy in these communications.

Seems pretty simple and straightforward, though the courts haven't bought this argument yet. Hopefully the appeals court is a bit more enlightened and/or informed.